State v. Buttercase

1.Search and Seizure: Appeal and Error. The
denial of a motion for return of seized property is reviewed
for an abuse of discretion.

2.
Sentences. An abuse of discretion takes
place when the sentencing court's reasons or rulings are
clearly untenable and unfairly deprive a litigant of a
substantial right and a just result.

3.
Judges: Recusal: Appeal and Error. A motion
requesting a judge to recuse himself or herself on the ground
of bias or prejudice is addressed to the discretion of the
judge, and an order overruling such a motion will be affirmed
on appeal unless the record establishes bias or prejudice as
a matter of law.

4.
Criminal Law: Search and Seizure: Property.
Property seized in enforcing a criminal law is said to be in
custodia legis, or in the custody of the court.

5.
Trial: Search and Seizure: Evidence.
Property seized and held as evidence shall be kept so long as
necessary for the purpose of being produced as evidence at
trial.

6.
Courts: Jurisdiction: Search and Seizure:
Property. The court in which a criminal charge was
filed has exclusive jurisdiction to determine the rights to
seized property, and the property's disposition.

7.
Search and Seizure: Property. The proper
procedure to obtain the return of seized property is to apply
to the court for its return.

8.
Judges: Recusal. Under the Nebraska Revised
Code of Judicial Conduct, a judge must recuse himself or
herself from a case if the judge's impartiality might
reasonably be questioned.

9. ___:
___. Under the Nebraska Revised Code of Judicial Conduct,
such instances in which the judge's impartiality might
reasonably be questioned specifically include where the judge
has a personal bias or prejudice concerning a party or a
party's lawyer.

[296
Neb. 305] 10.Judges: Recusal:
Presumptions. A defendant seeking to disqualify a
judge on the basis of bias or prejudice bears the heavy
burden of overcoming the presumption of judicial
impartiality.

11.
Judges: Recusal. In evaluating a trial
judge's alleged bias, the question is whether a
reasonable person who knew the circumstances of the case
would question the judge's impartiality under an
objective standard of reasonableness, even though no actual
bias or prejudice was shown.

12.
___: ___ . That a judge knows most of the attorneys
practicing in his or her district is common, and the fact
that a judge knows attorneys through professional practices
and organizations does not, by itself, create the appearance
of impropriety.

13.
___: ___. Judicial rulings alone almost never constitute a
valid basis for a bias or partiality motion directed to a
trial judge.

14.
Judges: Recusal: Waiver. A party is said to
have waived his or her right to obtain a judge's
disqualification when the alleged basis for the
disqualification has been known to the party for some time,
but the objection is raised well after the judge has
participated in the proceedings.

15.
Judges: Recusal: Appeal and Error. Once a
case has been litigated, an appellate court will not disturb
the denial of a motion to disqualify a judge and give
litigants a "second bite at the apple."

16.
Judges: Recusal: Time. The issue of judicial
disqualification is timely if submitted at the earliest
practicable opportunity after the disqualifying facts are
discovered.

Appeal
from the District Court for Gage County: Paul W. Korslund,
Judge. Affirmed.

This is
an appeal from the denial of Joseph J. Buttercase's
motion for the return of seized property, filed within a
criminal case that is currently pending on postconviction
review with this court, docketed as case No. S-15-987.

[296
Neb. 306] Buttercase contends that he was denied his right to
the return of certain personal property, in violation of Neb.
Rev. Stat. § 29-818 (Reissue 2016). The district court
denied the motion. Buttercase appeals. We affirm.

BACKGROUND

Following
a jury trial, Buttercase was convicted in the Gage County
District Court of first degree sexual assault, first degree
false imprisonment, strangulation, and third degree domestic
assault. Buttercase appealed, and in case No. A-12-1167, in
an unpublished memorandum opinion dated November 5, 2013, the
Nebraska Court of Appeals affirmed his convictions and
sentences.

On
December 9, 2015, Buttercase filed a motion for return of
seized property. In his motion, Buttercase requested the
return of the following:

1. One black leather couch cushion;

2. One brown and white striped fitted sheet;

3. One white mattress pad;

4. One Sony Camcorder;

5. One camera tripod;

6. One pair of Flypaper blue jeans;

7. One pair of blue Fruit of the Loom underwear;

8. One "I have the Dick" black T-shirt;

9. One pair of white Nike shoes and pair of ...

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